Monday, January 15, 2018

Reform could ensure family access to medical, financial info

By Colleen Heild

From across the country, Karla Holomon got the phone call that
families dread – her older half-sister Cheryl had been hospitalized at a
mental health facility in Albuquerque with a diagnosis of depression
and dementia.

Now Cheryl has been placed in a court-appointed
guardianship in New Mexico and may be moved away from her only friend,
who lives in Santa Fe, by the professional guardianship firm.

And
without action from the Legislature this year, there’s no guarantee that
Holomon, who lives in North Carolina, will be allowed access to
financial and other documents to ensure that her sister’s care is
adequate and that her sister’s savings are being spent wisely.

So far, Holomon told the Journal, her experience with New Mexico’s guardianship system has been rocky.

First, a social worker from Albuquerque called in December to insist
that Holomon agree to petition the state district court to place Cheryl
under a legal guardianship – the cost of which, the social worker said,
would be paid from her sister’s assets.

In a letter to District
Judge Alan Malott, who is presiding over the case, Holomon said she
initially agreed to be the petitioner.

But in a follow-up
conference call, her letter stated, an Albuquerque attorney involved in
the matter wanted her to sign a fee agreement to retain the lawyer’s
firm to handle the guardianship. Holomon said the attorney said the
price tag for an uncontested guardianship case was $8,000.

When Holomon said she would sign an agreement with a $10,000 cap, the lawyer replied that was not acceptable, the letter stated.

According
to the letter, Holomon, a retired corporate attorney, told the lawyer
and other parties on the call that she felt she was being coerced to
sign an open-ended fee agreement with a law firm she had no knowledge of
– at which point Holomon said the Albuquerque lawyer ended the phone
call.

The attorney, Marcy Baysinger, told the Journal on Friday she was aware of the letter to the judge.

“I
can tell you that I did not coerce her (Holomon) into doing anything.
We were having a general discussion about a potential engagement in an
attorney-client fashion,” Baysinger said. “There’s not a lot more I can
tell you because of the nature of guardianships and confidentiality.”

Baysinger was listed as the attorney for Central Desert Behavioral
Health Center, of Albuquerque, which filed as the petitioner in Cheryl’s
guardianship on Dec. 12, a court docket sheet shows. Asked who paid her
costs, Baysinger told the Journal, “I can’t tell you that.”

Cheryl
has since been moved to another facility after falling and breaking her
hip at Central Desert, Holomon said in her letter.

Holomon said she was so troubled by the episode that she wrote to Malott and asked that her letter be included in the case file.

“I
was told by an acquaintance that I need to be concerned about New
Mexico guardianships,” states her letter, a copy of which she sent to
the Journal. “Of course, she (her acquaintance) offered no particulars
as to precisely what I need to be concerned about.”

Financial reports closed to family

Holomon,
like other relatives of people placed under court-ordered guardianship
or conservatorship with private firms, told the Journal of the emotions
she faced upon learning her relative was in need and in the custody of
strangers.

She wrote in her letter that she has tried to help her
older sister many times over the years, and regrets that currently “I am
neither physically nor emotionally able to care for Cheryl.”

“All I want is what any family would want, and that is fairness and transparency,” Holomon told the Journal last week.

Holomon
asked Malott to provide her copies of the financial statements filed in
the case that would show how her sister’s assets, estimated at about
$100,000, are being spent by the professional guardian firm, the
petitioner’s attorney, and other parties.

But under current New Mexico guardianship laws, only the judge is entitled to financial reports, which are required annually.

That
could change if the Legislature enacts a new model uniform guardianship
law that, among numerous reforms, gives family members the right to
review financial and guardianship reports. Currently such records are
considered confidential.

State Sen. James White, R-Albuquerque, is
sponsoring a 187-page version of the reform act, which was the product
of two years of study by national experts.

Jack Burton

Santa
Fe attorney Jack Burton, a member of the Chicago-based Uniform Law
Commission that drafted the model law, told the Journal last week that
Gov. Susana Martinez needs to give the green light before the
Legislature can consider an overhaul of the law.
The 30-day legislative session, which generally focuses on budgetary issues, begins Tuesday.

Under
the uniform law, Burton said, family members are “absolutely” entitled
to reports filed with the court by guardians and conservators.

“I
don’t know exactly how New Mexico got off on the wrong track (in
crafting its guardianship laws) but it certainly did,” said Burton. He
said he expects a “companion” bill to be introduced to provide money for
the state’s courts to hire people to monitor and audit guardians and
conservators.

State Sen. Jerry Ortiz y Pino, D-Albuquerque, served
on the state Supreme Court guardianship commission that recently
studied ways to improve New Mexico’s system.

“From the testimony
we received, there was the strong belief that families are too
frequently excluded from a meaningful role in this process,”Ortiz y Pino
told the legislative health and human services commission in November.

The
Supreme Court commission released its recommendations to the Supreme
Court on Jan. 1 and endorsed the Uniform Act, with several minor
amendments.

When such cases get into the court system, Ortiz y
Pino said, “it’s almost like people feel like if you go to court then
the family is ruled out, their input is discounted, they’re not
solicited for suggestions and they’re not kept informed.”

‘Troubling’ conversation

Cheryl
has been employed at various times as a legal secretary and a manager
of a Santa Fe resort but has no other living relative with whom she has
maintained contact, Holomon’s letter stated.

“At this point in my
life, I am not capable of dealing with Cheryl’s current situation
without support from other family members. Unfortunately, there are
none. While I do not have the affection and regard for Cheryl that one
would hope to have for a sibling, I do care what happens to her.”

Holomon
said she understands the state “must be compensated for the manpower
and services that it has dedicated to establishing and maintaining this
guardianship” and is “very grateful” for the care and assistance already
provided to Cheryl.

Holomon said she initially agreed to be the
petitioner after being informed by a social worker that filing as the
petitioner would cost her “nothing, with funds coming from Cheryl’s
assets.”

New Mexico law states, “If not otherwise compensated for
services rendered, any visitor, attorney, physician, conservator or
special conservator appointed in a protective proceeding is entitled to
reasonable compensation from the estate.”

Cheryl has an investment account, a bank account, social security, and long-term care insurance, Holomon said in her letter.

She told Malott that the subsequent conversation with Baysinger “was very troubling on a number of levels.”

Also
troubling her is whether her sister will be moved to Las Cruces, where
the court-appointed guardian, CNRAG Inc. is headquartered, she said in
the letter.

“I am concerned that it is so remote, and particularly
that Cheryl will not be able to have visits from … her one close
friend, who resides in Santa Fe.”

Holomon, in her letter, told the judge she took care of their mother, who had Alzheimer’s, until her death.

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NASGA (National Association to STOP Guardian Abuse, Inc.) is a 501(c)(3) public-interest, civil rights organization formed by victims of unlawful and abusive guardianships and conservatorships. We seek legislative reform of existing law and upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment and engaging in elder and family abuse.

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